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Judgment
By this petition, appellant has challenged the judgment and order dated 04.08.2003 passed by the Court of 1st Ad hoc Additional Sessions Judge,
Akola (trial Court) in Sessions Trial No.132/2002, whereby the appellant (accused no.2) stood convicted for an offence punishable under Sections 363
and 365 read with Section 34 of the Indian Penal Code (IPC) and he stood sentenced to suffer rigorous imprisonment of 4 years and to pay a fine of
Rs.500/Â each on both counts.
The appellant was the original accused no.2. As per the prosecution case, on 01.05.2002, Anwar Ali (accused no.1) took Shahajad Ali (PW2),
minor son of Shamsher Ali (PW1), from near his home in Akola. When Shamsher Ali (PW1) looked for his son, he could not find him and on the
next day, he lodged an oral report on 02.05.2002 in Police Station, where First Information Report (FIR) was registered under Sections 363 and 366 of
the IPC. The said witness Shamsher Ali (PW1) stated that he suspected Anwar Ali (accused no.1) for having kidnapped his son because the said
Anwar Ali was initially employed with Shamsher Ali (PW1) and that there had been a quarrel between them. Later, Shamsher Ali (PW1) claimed
to have received a call and he was informed that he should pay a ransom of Rs.2,00,000/Â, if he wanted his son to be safe and that the amount be
paid at Lucky Hotel, Saki Naka, Mumbai. According to the prosecution case, Anwar Ali (accused no.1) had taken the child victim Shahjad Ali
(PW2) to Mumbai to one of his friends where they stayed in the night and on the next day i.e. on 03.05.2002, Anwar Ali (accused no.1) took Shahjad
Ali (PW2) to the shop of a tailor Jinnan Ali (PW7), where the appellant (accused no.2) met accused no.1. It is from there that both the accused
took Shahjad Ali (PW2) in an autoÂrickshaw from Saki Naka to near Lucky Hotel, where Anwar Ali (accused no.1) told the appellant to get down
from the auto rickshaw and collect the bag full of ransom money, which Shamsher Ali (PW1) had brought. According to the prosecution,
Shamsher Ali (PW1) had been told that when the bag full of ransom amount was collected from him, he should give a signal and upon doing so,
policemen in plain clothes followed the appellant, who had by then started walking towards autoÂrickshaw in which Anwar Ali (accused no.1) and
child victimÂShahjad Ali (PW2) were sitting. It was near a STD booth that the autorickshaw had been waiting, but upon the policemen chasing the
appellant, he ran towards the said booth where he was caught by the policemen and, thereafter, Anwar Ali (accused no.1) was also apprehended.
Custody of the child victimÂShahjad Ali (PW2) was handed over to his father Shamsher Ali (PW1). On this basis, both the accused including the
appellant, were charged with having committed an offence under Sections 363, 365 and 384 read with Section 34 of the IPC.
The prosecution examined nine witnesses in support of its case. The material witnesses were; Shamsher Ali (PW1), father of the child victim,
Shahjad Ali (PW2), the child victim, Mari Muthu (PW6), autoÂrickshaw driver and Dnyandeo Choudhari (PW9), the investigating officer. Hira
Choudhari (PW3), Jumma Kasam (PW4) and Sk. Jumma Sk Buddhu Choudhari (PW5) were the pancha witnesses, who had turned hostile.
On the basis of the evidence and material placed on record, the trial Court found that although the witnesses had claimed that ransom amount was
handed over by Shamsher Ali (PW1) to the appellant, but it was not seized. No currency notes were ever seized by the investigating officer during
the course of investigation. On this basis, the trial Court found that the offence under Section 384 of the IPC was not made out against the
accused. But, insofar as the offences under Sections 363 and 365 read with Section 34 of the IPC were concerned, the trial Court found that both
the accused, including the appellant, had committed the said offences as there was sufficient material on record to prove their guilt beyond reasonable
doubt. The trial Court convicted and sentenced the appellant and accused no.1 in the aforesaid manner.
Mr. Vinay Dahat, Advocate appointed by this Court on behalf of the appellant, submitted that insofar as the appellant (accused no.2) was
concerned, there was hardly any evidence on record to show that he had committed an offence punishable under Sections 363 and 365 of the IPC.Â
It was submitted that even if evidence of the prosecution was taken as it is, ingredients of the offence, for which he was convicted, were not made out
in the present case. It was submitted that the evidence of child victimÂShahjad Ali (PW2), autoÂrickshaw driverÂMari Muthu (PW6) and tailorÂ‐
Jinnat Ali (PW7), also did not bring on record any material to show that the appellant had indeed taken or enticed the child away without the consent
of his guardian or that he had kidnapped the child with intent to cause that child to be secretly or wrongfully confined. It was submitted that the trial
Court did not appreciate the evidence and material on record in correct perspective and while convicting Anwar Ali (accused no.1), the trial Court
also convicted the appellant, without appreciating that role of the appellant was not that of a person who could be held responsible for kidnapping
Shahjad Ali (PW2).
On the other hand, Mrs. Swati Kolhe, learned A.P.P. on behalf of the respondentÂState, submitted that evidence on record was sufficient to
demonstrate that the appellant had accompanied Anwar Ali (PW1) from the shop of the tailorÂJinnan (PW7) to Lucky Hotel along with child
victimÂShahjad Ali (PW2) and that the material on record indicated that the appellant was equally guilty for the offence punishable under Sections
363 and 365 of the IPC. It was submitted that the trial Court had correctly appreciated the material on record to convict the appellant along with
accused no.1.
Heard counsel for the parties. Perused the evidence and material on record. The appellant in the present case is accused no.2. The
evidence and material on record shows that the appellant was not at all involved from the stage when the child victimÂShahjad Ali (PW2) was taken
away from Akola and brought to Mumbai. As per the prosecution case, Anwar Ali (accused no.1) had taken away the said child from Akola to a
city and from there to Mumbai. The appellant appeared on the scene on 03.05.2002 in the shop of tailorÂJinnan (PW7). It is from this instant that
the role of appellant had started till the time he was apprehended by the police, a little while later near Lucky Hotel when he was allegedly taking
away the bag full of ransom amount. The evidence of Shamsher Ali (PW1), Shahjad Ali (PW2), Mari Muthu (PW6) and Jinnan (PW7) is relevant
for understanding as to what was the role attributed to the appellant, even as per the prosecution case.
Evidence of Shamsher Ali (PW1) shows that according to this witness, the appellant came to Lucky Hotel on 03.05.2002 and asked as to who was
Shamsher Ali, upon which Shamsher Ali (PW1) stood up. The appellant orally asked Shamsher Ali (PW1) to hand over bag of cash to him and
upon taking the said bag, the appellant left the hotel. According to Shamsher Ali (PW1), police in plain clothes followed the appellant and caught
him near auto rickshaw wherein Anwar Ali (accused no.1) and the child victimShahjad Ali (PW2) were sitting. It is relevant that the cash amount
was never seized by the police. In fact, the trial Court has completely disbelieved the theory of ransom amount being handed over to the appellant,
due to which the appellant and the coaccused have been acquitted of the offence under Section 384 of the IPC. Thus, evidence of Shamsher Ali
(PW1) as against the appellant only gets restricted to the appellant entering Lucky Hotel and asking for Shamsher Ali (PW1)
Evidence of child victimÂShahjad Ali (PW2) shows that he saw the appellant for the first time in the shop of tailorÂJinnan (PW7). The said
witness further stated that Anwar Ali (accused no.1) told the appellant that he would pay Rs.1,000/ and give him work. Thereupon, Anwar Ali
(accused no.1) allegedly told the appellant to go to Lucky Hotel and bring the amount from the person named Shamsher Ali. Thereafter, statement of
this witness is similar to that of Shamsher Ali (PW1), regarding the appellant being apprehended by the police. As the trial Court itself has found
that the theory of existence of ransom amount was not believable because currency notes were not seized by the police, the statement of this witness
that Anwar Ali (accused no.1) had told the appellant to go to Lucky Hotel and bring amount from Shamsher Ali, cannot be believed. The evidence
of child victimShahjad Ali, shows that the appellant came to the tailor shop where he met Anwar Ali (PW1), who promised the appellant to give some
work and that both of them took Shahjad Ali (PW2) to Lucky Hotel.
The evidence of Mari Muthu (PW6), auto rickshaw driver, shows that Anwar Ali (accused no.1) along with the appellant took child victimÂ‐
Shahjad Ali (PW2) to Lucky Hotel. This witness clearly stated that the appellant had asked Anwar Ali (accused no.1) for giving work to him, upon
which Anwar Ali (accused no.1) stated that his work was going on at 4 to 5 places and that he could give a job of supervisor to him. This witness
then stated that Anwar Ali (accused no.1) asked the appellant to go to Lucky Hotel and to see whether one person had come or not. Thereafter, his
evidence is consistent that the appellant was apprehended by the police. The evidence of this witness clearly shows presence of the appellant in the
autoÂrickshaw and there was conversation between two accused, indicating that Anwar Ali (accused no.1) promised the appellant to give him some
job. There is no mention of any amount to be collected by the appellant from the person whom he would meet at Lucky Hotel.
Evidence of tailorÂJinnan (PW7) shows that Anwar Ali (accused no.1) had come with Shahjad Ali (PW2) to his shop at about 11.00 a.m. and
thereafter again at about 3.00 p.m. It was this time that the appellant came to the said shop and that thereafter all three of them went away from
the shop. In crossexamination, this witness had stated that the appellant was doing tailoring work and that he used to come to the shop some times.
Thus, this is the nature of evidence of the prosecution witnesses as regards role of the appellant (accused no.2) in the present case. The
evidence of these witnesses, even if accepted in totality, at worst, attributed the role to the appellant of having accompanied Anwar Ali (accused no.1)
from Saki Naka to Lucky Hotel along with child victimÂShahjad Ali (PW2) and having met Shamsher Ali (PW1). Since evidence regarding ransom
amount had been completely disbelieved by the trial Court due to absence of seizure of cash amount, it cannot be said that the appellant could be
connected to any demand or collection of ransom amount in the present case. In fact, the trial Court itself had acquitted both the accused of
offence punishable under Section 384 of the IPC. The relevant question, therefore, in the present case, insofar as the appellant is concerned, is
whether it could be said that the evidence and material on record proves beyond reasonable doubt guilt of the appellant for offence punishable under
Sections 363 and 365 of the IPC.
Section 363 of the IPC pertains to punishment for kidnapping and the offence is defined under Section 361 of the IPC i.e. kidnapping from lawful
guardianship. The essential ingredients of this offence are; taking or enticing a minor child from the custody of lawful guardian without the consent
of such a guardian. In the present case, there is nothing on record to show that the appellant took away or enticed Shahjad Ali (PW2) from his
lawful guardian i.e. his father Shamsher Ali (PW1). Child victim in the present caseÂShahjad Ali (PW2) was taken away or enticed from Akola
and even as per the prosecution, the entire role in this regard was attributed only to Anwar Ali (accused no.1). In this situation, when even as per
the prosecution case, the appellant for the first time appeared in the shop of tailorÂJinnan (PW7), where Anwar Ali (accused no.1) was already
present with Shahjad Ali (PW2), it could not be said that the appellant had taken or enticed Shahjad Ali (PW2) from his lawful guardian at Akola. It
is not even the prosecution case that the appellant was involved with Anwar Ali (accused no.1) right from the time when Shahjad Ali (PW2) was
taken away from his house at Akola. There is no evidence or material on record to connect the appellant with the role attributed to Anwar Ali
(accused no.1) from the time Shahjad Ali (PW2) was taken away from Akola.
Insofar as Section 365 of the IPC is concerned, it is pertaining to kidnapping of a person to be secretly or wrongfully confined. The appellant
was with Anwar Ali (accused no.1) and child victimÂShahjad Ali (PW2) only for the time period when they left from Saki Naka in the autoÂ‐
rickshaw and reached Lucky Hotel, where the appellant got out from the autoÂrickshaw on the instructions of Anwar Ali (accused no.1) to go and
meet a person called Shamsher Ali (PW1). Other than the aforesaid time period, there was no material on record to show that the appellant was in
the company of Anwar Ali (accused no.1) or Shahjad Ali (PW2). The evidence of the prosecution witnesses indicates that the appellant was looking
for work and that Anwar Ali (accused no.1) did inform him that he could be given the job of a supervisor to him as there were 4 to 5 places where the
work of Anwar Ali (accused no.1) was going on. In fact, child victimÂShahjad Ali (PW2) himself stated in his evidence that Anwar Ali (accused
no.1) had told the appellant that he would give him Rs.1,000/ for doing the work. All this material and the fact that the appellant was in the
company of victim childÂShahjad Ali (PW2) only for a brief period i.e. during the autoÂrickshaw drive from the tailor's shop at Saki Naka to Lucky
Hotel, clearly demonstrates that the essential ingredients of offence punishable under Section 365 of the IPC i.e. kidnapping with intention to cause the
kidnapped person to be secretly or wrongfully confined, are not satisfied in the present case. As the ingredients of both the offences punishable
under Sections 363 and 365 of the IPC are not made out, the trial Court could not have convicted and sentenced the appellant along with Anwar Ali
(accused no.1).
In fact, a perusal of the impugned judgment and order of the trial Court shows that the role of the appellant has not been appreciated by the trial
Court by analysing the evidence of the relevant prosecution witnesses in the correct perspective. Therefore, the impugned judgment and order, insofar
as it convicts and sentences appellant (accused no.2), is erroneous and hence unsustainable.
In the light of the above, the appeal is allowed. The impugned judgment and order of the trial Court is set aside. The appellant (accused no.2)
is acquitted of the offence for which he was charged. Consequently, order dated 03.10.2017, issuing bailable warrant against the appellant stands
recalled.
Professional charges of Mr. Vinay Dahat, learned Advocate appointed on behalf of the appellant, are quantified at Rs.5,000/Â